Ta h
lk ts
ig
R
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A IES
T S E RT
EN B
D LI
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AT
SCHOOL
BC CIVIL LIBERTIES ASSOCIATION
Alyssa Stryker
with
Laura Crestohl,
Menka Sull and
Danielle VanderEnde
The BC Civil Liberties Association is grateful to the Law Foundation of BC and the
Notary Foundation of BC for providing support for this project.
Written by Alyssa Stryker with Laura Crestohl, Menka Sull and Danielle VanderEnde.
© BC Civil Liberties Association 2013
Contents may not be commercially reproduced without permission,
but any other reproduction is encouraged.
Where reproduced, attribution should be given to the BC Civil
Liberties Association.
Cataloguing data available from Library and Archives Canada.
BC Civil Liberties Association
Tel: 604.630.9748
Email: [email protected]
BC Civil Liberties Association
900 Helmcken Street, 2nd Floor
Vancouver, BC V6Z 1B3
Rights Talk
Students and
Civil Liberties
at School
Alyssa Stryker
with
Laura Crestohl,
Menka Sull and
Danielle VanderEnde
Acknowledgements
The BCCLA gratefully acknowledges the financial support of the Law
Foundation of BC and the Notary Foundation of BC, without which this
guide could not have been produced. The collaboration of our 2013 legal
interns – Laura Crestohl, Menka Sull and Danielle VanderEnde – was also
invaluable.
We would also like to thank Laura Huey and Pam Murray, who wrote
the original 2001 version of the Rights Talk handbook. Although this new
version of the handbook is significantly different than theirs, it was their
hard work that gave us a strong foundation on which to build a more
up-to-date product for students who are facing the kinds of civil liberties
concerns Laura and Pam just could not have anticipated twelve years ago.
Thanks to Emily Stryker for generously offering a teenager’s perspective on
various drafts of the handbook, Jeanie Casault for help with the editing,
and to BCCLA Office Manager Jim Braunagel for his layout and graphic
design skills. Last but not least, thanks to BCCLA staff Stefanie Ratjen,
Micheal Vonn, and Josh Paterson for their various roles in helping to
shepherd this project to completion.
— Alyssa Stryker, BCCLA Caseworker, October 2013
This guide is not legal advice!
This publication is a general guide. It covers technical and complex
subjects and should not be used to make decisions on legal matters. If
you have a legal issue in your personal life related to the topics covered
in this guide, you should consult a lawyer. If you don’t know how to
do this, call the BCCLA. We can’t give you legal advice ourselves, but
we can help you find somewhere to get it.
4
Contents
What You’re About to Learn…
Chapter 1: The Basics
9
a. So, what are civil liberties?
9
b. Where do civil liberties come from?
10
c. Your rights can be limited!
12
d. The Charter and the School Act
12
Chapter 2: Freedom of Expression
14
a. Dress codes: What’ll I wear?
14
Chapter 3: Walking the Line: Secularism and Religious Freedom
19
a. Freedom of religion under the Charter
19
b. Balancing secularism with freedom of religion
20
i. Religious clothing
20
ii. School prayer
21
iii. Teaching ‘sensitive’ subjects: LGBTQ issues
22
Chapter 4: New Challenges: Technology and Civil Liberties a. Taking freedom of expression online
i. If I write under a pseudonym, how will they know it was me?
27
27
28
b. Sexting: Harmless fun or serious crime?
29
i. What exactly is child pornography?
30
ii. What do I need to know about sexting?
31
c. They’re watching you: Video surveillance
5
33
Chapter 5: All Kinds of Searches35
a. Cell phone searches36
i. Can police officers search my phone?
37
ii. What about information held by my cell phone provider?
39
b. Searching your person39
c. Searching your locker or backpack
41
d. Use of sniffer dogs42
Chapter 6: School Discipline and Criminal Justice
44
a. School discipline and your rights
45
i. Detentions: An in-school deprivation of liberty
45
ii. Suspensions and what to do about them
47
b. The criminal law, the police and you
48
i. Key laws48
ii. Interacting with the police
49
1. Talking to the police while you’re on foot
49
2. Talking to the police while you’re driving
50
3. If you are under 18
50
For Further Discussion53
Links to Legal Decisions56
6
What You’re About to Learn…
Welcome to the Rights Talk handbook, your guide to your rights as a
student and a youth in Canada. In this handbook, you’ll learn about a
whole variety of civil liberties issues that affect you – everything from dress
codes to sniffer dogs to whether or not your teacher can go through the
contents of your phone.
Some of the things you’ll know after reading this handbook include:
•When it’s ok for the government to limit your rights and
freedoms (page 12).
•Whether it’s ok for religious parents to pull their children out of
classes that discuss subjects like LGBTQ issues and sex ed
(page 22).
•Whether you can face criminal charges for sexting (page 31).
•Whether your teacher or the police can search the contents of
your cell phone (page 36).
•Whether you can be disciplined at school for something you
said outside of school (page 28).
•When it’s ok for your school to bring in a sniffer dog to look for
drugs (page 42).
•How to appeal if you get suspended at school (page 47).
•What your rights are when talking with the police (page 49).
Don’t want to read the whole thing? Check out the table of contents and
you can figure out what part to read to get the information you’re looking
for. Or you can read it cover to cover to become as informed as possible
about your rights and freedoms both at school and beyond.
7
If you have more questions about one of the “Think about it” boxes, or
need a bit more information to get a good discussion started, check out the
“For Further Discussion” section, beginning on page 53.
Throughout this handbook we’ll make reference to different legal decisions
that teach us different things about how our laws work in Canada. If you
are particularly interested in an issue, it can be fascinating to take a look at
the legal decision itself. The very last section of the handbook provides you
with URLs where you can access the different decisions referenced in this
guide.
One last point before we get started: it’s important to note that we wrote
this handbook with public school students in British Columbia in mind. If
you go to school in another province, or attend a private school in BC, not
all of the information contained here will apply to you. You may still find it
interesting, however – it might help you think of questions you should be
asking about how things work in your home province or private school.
8
1 The Basics
The BC Civil Liberties Association believes
that informed and active citizens are vital
to protecting fundamental rights and
freedoms in Canada. People in power,
from police officers to your Social Studies
teacher, may sometimes try to take certain
actions that violate your rights. This isn’t
necessarily because they are bad people – it may be that they themselves
don’t know what your rights are, or it may be because they are trying to
take advantage of the fact that that you go along with it because you
don’t know any better.
For this reason, it’s crucial that you know what your rights are and how
they work. The more you know about them, the more you can make sure
that your rights (and the rights of others) are respected, both in and out of
school.
So, what are civil liberties?
Civil liberties are a set of values concerning individual freedom and the
limits of government intervention in our lives. Because public schools are
run by the government, civil liberties include the freedom of students in
school and the limits to the school’s control over your life. As you will see,
however, the law does allow schools to limit your freedom in ways that
other parts of the government – like the police – are not allowed to.
There are many examples of civil liberties in Canada. Some might apply
only to citizens of Canada, like voting rights, while others apply to everyone regardless of citizenship. Key civil liberties include:
•Privacy (the right not to be snooped on by the government)
9
•Access to information (the right to know what information the
government possesses)
•Freedom of speech and expression (the right to express what
you think, believe and feel)
•Freedom of association (the right to spend time with and form
groups with whoever you want)
•Legal rights in relation to the criminal law (rights when you are
arrested, during a trial and if convicted)
•Political rights (the right to vote and the duty of governments to
hold free and fair elections)
The civil liberties we talk about in this handbook will touch on a number
of these different areas, but will particularly relate to privacy, freedom of
speech and expression, and legal rights.
Where do civil liberties come from?
Civil liberties in Canada are outlined in three main legal sources:
1) Canada’s constitution: Many of your civil liberties are guaranteed in the Canadian Charter of Rights and Freedoms, part of
our constitution. The constitution is the highest law in Canada,
and all other laws must uphold Charter rights. It is much more
difficult for the government to change the constitution than it
would be to change any other law.
2) Federal and provincial human rights laws, such as the Canadian
Human Rights Act and the BC Human Rights Code: These
laws protect individuals against certain kinds of discrimination,
based on things like race/ethnicity, gender, physical or mental
disability, marital status and sexual orientation.
10
3) The common law: A complicated concept
that expresses the way both old and new
court decisions help to shape our current legal
system. For the purposes of this handbook,
you can think about common law as a fancy
way of saying the stuff that judges decided in
old legal decisions. Other judges take this into
account and are guided by this when looking
at new cases. When we refer to things we know from old
legal cases throughout this handbook, we’ll be referring to the
common law. These old legal cases are often called ‘case law’.
While all of these sources are extremely important, we will be working
mainly with the Charter of Rights and Freedoms and examples from the
common law. We’ve provided you with a link to an online copy of the
Charter below. It might be a good idea to read it over before you get any
further, and to keep it handy to refer to as you go. For such an important
piece of legislation, you’ll be surprised at how short it is – it won’t take you
long to read at all.
http://laws-lois.justice.gc.ca/eng/const/page-15.html
Although the Charter is very powerful, it does not apply to all issues of
injustice or unfairness. Section 32 of the Charter states that it applies to
dealings between an individual or group and the federal, provincial and
municipal government and their designated agencies or agents.
This means that your Charter rights protect you when you deal with the
police (since they are technically part of the government), but you can’t
enforce your Charter rights against a private company, a friend or a sibling.
The Charter also doesn’t apply to your relationship with your parents,
which becomes more important than you might think when we get into
the way the way the Charter applies to schools – read on! We’ll come back
to this in the section titled “The Charter and the School Act.”
11
Your rights can be limited!
You may be asking by now why, if you have the right to privacy, you have
to tell ICBC your address when you go in to get your driver’s license, or
why, if you have the right to free speech, you aren’t allowed to go around
threatening anyone you want. This is because our rights and freedoms,
even in a country like Canada, are not absolute – that is, they have limits.
If you read the Charter carefully, you may have noticed section 1:
The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
What does this mean? It means that when some part of the government
wants to do something that violates your rights, they can do so legally
if they convince a judge that they have a very good reason for doing so.
The reason also has to be consistent with the fact that we live in a free
and democratic society. Doing this can be very complicated – many of the
most important legal cases related to civil liberties hinge on lawyers trying
to make arguments about whether an alleged violation of Charter rights is
justified under section 1. It can also be straightforward, like the fact that
most people consider it reasonable to send someone to jail if they commit a
serious crime, despite the fact that going to jail is a major infringement
on freedom.
The Charter and the School Act
There is just one more thing we need to talk about before getting into the
more meaty part of this handbook, and that is a piece of British Columbia
legislation called the School Act. It is a very long law that sets out the legal
powers and responsibilities of teachers, school administrators and school
boards.
12
To understand how this Act works
and how it interacts with the Charter,
you’ll need to learn a little Latin: in loco
parentis, which means “in the place of a
parent”. During school hours the school
(the teachers, principals, and other school
officials) act as your parents or guardians.
Therefore, school officials have the right, within reason and within the
guidelines of the Act, to discipline you if you are not behaving appropriately in class, or to demand that you hand in your homework on time.
It also means that, although public school officials are technically part of
the government and would therefore usually be covered by the Charter,
they actually fall into a grey area between the government and your
family – remember how we learned that the Charter does not apply to your
relationship with your family?
This means that while you do have many rights while in school, it is
sometimes considered acceptable for teachers to violate your rights if they
can argue that it’s in your best interest, and they claim that they are acting
in loco parentis. This is different than if you were dealing with a police
officer or other government official, as police officers cannot claim to be
acting in loco parentis. We’ll learn more about this later in the handbook.
13
2 Freedom of Expression
Freedom of expression is the right to express yourself to
others. It’s because of free expression that we’re allowed to
share ideas with each other – good ones, bad ones, smart
ones, dumb ones, popular ones and unpopular ones, even
ideas that may be highly offensive to some people. Free
expression is one of the most fundamental and important
civil liberties – democracy just wouldn’t exist without it.
We often use “freedom of expression” and “freedom of speech” interchangeably, but actually expression covers much more than just speech. It
can also include thoughts, writing, symbols, songs or art. Actions can also
be expressive - flag-burning is a classic example of this.
Think about it
Free speech is not limitless, however. In
Canada, the government and the courts have
What kinds of things
outlined a number of circumstances in which
do you think some-
they (on behalf of society at large) deem it
one might be trying
appropriate to limit the freedom of expression
to express by burning
of citizens when it can be shown that other
their country’s flag?
interests are more important. We’ll talk more
about this later in this section.
Dress Codes: What’ll I wear?
One classic free expression in schools issue is the case of dress codes for
students. Clothing choices are an important way that individuals express
themselves in society, along with other aspects of appearance such as
hairstyles, make-up, tattoos, piercings, buttons with slogans or head
coverings.
However, many schools argue that limiting what students can wear to
school (restrictions that can range from banning clothing with swear words
14
to requiring that students wear uniforms) is crucial to the important goal of
creating a safe and healthy learning environment.
There have not been any recent legal cases in Canada that specifically
examine the constitutionality of school dress codes. The older cases on the
subject (many of them from before the Charter even existed!) all uphold
schools’ rights to set and enforce dress codes.
Can you think of something a student might try to express through their
clothing that you feel it would be appropriate for the school to restrict?
South of the border
As you may know, Canadian courts do not have to follow American
law and court decisions. However, it can be interesting to look at
American examples when learning about civil liberties, particularly in
areas where there are not many Canadian decisions to look to. School
dress codes is one of these areas.
In the fall of 2003, a federal judge in the United States examined
the case of a teenager whose school banned him from wearing a
t-shirt with a picture of President George W. Bush and the caption
“International Terrorist.” The school argued that wearing such a shirt
might cause a disruption, and that school was an inappropriate place
for political debate.
The judge found that the student must be allowed to wear the shirt to
school, writing that “students benefit when school officials provide an
environment where they can openly express their diverging viewpoints
and when they learn to tolerate the opinions of others.”
More information about this case can be found here: https://www.
aclu.org/free-speech/judge-rules-favor-michigan-students-right-wearanti-war-t-shirt-school
15
Nudity: The Limits of Clothing as Expression?
In May 2009, a man named Brian Coldin drove through a Tim Hortons
drive-through in Bracebridge, Ontario with no clothing on. Four days
later, Mr. Coldin – this time along with two friends – surprised another
drive-through worker, this time at A&W: all of them were naked. Mr.
Coldin was charged with public nudity, and argued in his defence that
laws against public nudity violate his Charter right to free expression
and freedom of religion. He argued that he is a ‘naturist’, and that
wearing as little clothing as practical was crucial for the expression of
his beliefs. The judge was not convinced, and ruled that in this case the
social disruption of public nudity overshadowed any expressive rights
Mr. Coldin may have as a naturist. What do you think? Can you think
of examples of important expression that could be communicated
through nudism? Do you think these are important types of expression
to protect?
Schools that enforce dress codes of various kinds use several main justifications for limiting expression in this way. Which of the following arguments
do you think make the most sense?
• Bullying: Some people argue that school uniforms decrease the
visible differences between students, thus making it less likely
they will be bullied for looking different. Others argue that dress
codes don’t actually affect bullying much anyway, so they say
that this isn’t a good argument.
• “Distracting” clothing: Some suggest that particular kinds
of clothing have the potential to distract students from their
schoolwork, and so must be limited to improve student focus.
They tend to focus on clothing worn by young women that they
consider “overly sexualized.” Almost everyone would agree that
some regulation on sexualized clothing in schools is appropri-
16
Think about it
Maya is a grade 12 student who has been involved in pro-life
activism from a very young age. Recognizing the sacredness of life
from conception is an important part of her religious beliefs, and she
believes strongly that she needs to try to teach her fellow students that
abortion is the same as killing a baby. She decides to start regularly
wearing a t-shirt to school that says “ABORTION = MURDER.”
Ye is also a grade 12 student at Maya’s school. When she was in grade
10 she got pregnant and decided to have an abortion. When she saw
Maya’s shirt she got very upset at the idea that Maya was calling her a
murderer. She was so upset that she started feeling anxious at school,
and had a great deal of trouble focusing on her work. She talked to
her school counsellor about it, who passed her complaint anonymously
to the principal. Maya was told she could no longer wear her shirt to
school.
1) How is this situation similar to the American student with
the “International Terrorist” t-shirt? How is it different?
2) Was there a less extreme way the school could have made
sure Ye didn’t feel harassed and discriminated against other
than forbidding Maya from wearing her t-shirt?
3) Do you think Maya should be allowed to wear her shirt?
Why or why not?
See “For Further Discussion” section on p. 53 for more information.
17
ate – it would be hard to find someone who would seriously
argue that students should be allowed to attend school naked
(although see box on page 16 for quirky case about nudity and
expression!) – but how much limitation is appropriate?
• Discriminatory expression: Schools and school boards are legally
required to ensure that human rights are protected and form the
basis of their learning environments. Clothing with racist, sexist
or homophobic messages, or any other negative messages that
overtly target a recognizable group or individual, could possibly
make it very difficult for all individuals to participate equally and
safely in the school environment.
As you can see, many of the examples that we’ve touched on in our
discussion of freedom of expression also tie into another important Charter
right: freedom of religion. We’ll discuss freedom of religion in much more
detail in Chapter 3.
18
3Walking the Line: Secularism and
Religious Freedom
In the previous section, we mentioned some examples
of free expression protected under the Charter that are
related to religion, such as the right of people to wear
religious clothing or clothing that expresses a religious
belief. In this section we’re going to talk about freedom
of religion more specifically. Canada is often referred
to as a secular country, which means that the government is separate
from religious institutions and the government will not impose particular
religious beliefs on the public.
One example of where we see the principle of secularism come up in
Canada is in the running of public schools. The BC School Act states that
all public schools must be secular and that no particular religion should be
taught in them.
Think about it
Freedom of religion under
the Charter
How secular is Canada?
At the same time, section 2(a) of the
Can you think of any
examples of when the
government does impose
a particular religious
belief on people? What
about holidays like Easter
or Christmas? Do we
consider these to be
religious holidays
anymore?
Charter protects each person’s freedom
of religion. There are two main aspects
to this freedom. First, freedom of religion
includes the right to hold religious beliefs
and the right to express these beliefs
openly without fear.1 Second, freedom of
religion includes the ability to be free from
the imposition of other religious beliefs and
practices.
1 This right is outlined in a legal case called R v Big M Drug Mart Ltd.
19
While section 2(a) of the Charter ensures that you are not forced into
following a religion, there is no guarantee of freedom from all exposure
to other religions. This means that followers of a religion can express their
beliefs in public as long as they do not violate the rights of others.2
Balancing secularism with freedom of religion
Balancing secularism with freedom of religion in the public school system
can be a difficult task. Although the School Act says that schools have to
be secular, this does not mean that there is no room for religion at all. For
example, schools can teach students about different religions as long as
they do not force students to join a religion.3
The following examples demonstrate how courts and
the government try to balance the Charter’s guarantee
of freedom of religion with the principle that public
schools should be secular. As you can see, it can sometimes be a tricky balance.
Religious clothing
For many people, expressing their religious beliefs involves wearing religious items, symbols or clothing. But
what if expressing your religious beliefs could endanger
the safety of others? The Supreme Court of Canada
had to deal with this issue in the case of Multani v
Commission scolaire Marguerite-Bourgeoys, in which
a Sikh student wanted to wear a religious dagger called a kirpan to school.
The school authorities were concerned that wearing the kirpan would pose
a safety risk to other students because it could be used as a weapon. They
told the student he could not wear it to school. The Supreme Court said
that not allowing the student to wear his kirpan violated his freedom of
religion, and that the school needed to take steps to allow him to wear it.
2 The Supreme Court of Canada talks about this in the case Chamberlain v Surrey School
District No 36.
3 You can find more about this in the case SL v Commission scolaire des Chênes.
20
As long as the student wore the kirpan securely under his clothes, there
was little chance that it would be used for violence against other students.
Think about it
The Quebec Soccer Federation recently overturned its ban on players
wearing turbans or other religious headwear on the soccer pitch. If you
were a lawyer, what kinds of arguments in support of or against the
turban ban could you make based on what the Supreme Court said in
the Multani case? Remember, a lot of what lawyers do is take arguments from previous cases and apply them to new situations.
School prayer
As we discussed earlier, freedom of religion includes the ability to be free
from having to participate in religious practices that you don’t want to
participate in. So, for example, public schools cannot require prayer or
reading of religious texts in school. But this was not always the case. Until
1989, the BC School Act said that all public schools had to open classes
with the reading of passages from the Bible and a Christian prayer. In the
case of Russow v British Columbia, a BC court decided that this violated
freedom of religion because it imposed the majority religion on minorities.
As a result, the BC government changed the School Act to ensure secularism in public schools.
In a 2012 case called SL v. Commission scolaire des
Chênes, some parents objected to their children
having to take a class about various religions because
they claimed it would interfere with their ability to
pass on their religion to their children. The Supreme
Court of Canada disagreed, and ruled that merely
being exposed to different religious beliefs does not violate anyone’s
freedom of religion. Does knowing about this case change your answer to
the questions in the box on page 22?
21
Think about it
School districts in some BC cities allow a Christian group to deliver free
Bibles to Grade 5 students with parental consent. Some people think
that this goes against the idea of public schools being secular. Do you
think this violates the principle of secularism found in the School Act?
What if other religious groups were also distributing their religious
books – would that make a difference to your opinion? Why or
why not?
Teaching ‘sensitive’ subjects: LGBTQ4 issues
Even though Canadian society is getting better at respecting the rights of
people who aren’t heterosexual, there are still some parents who might not
want their children to learn about LGBTQ issues in school, usually because
of their religious beliefs. Often these same parents are also concerned with
the way public schools teach sex ed. What should schools do in these types
of situations? How do they address the concerns of parents while also
ensuring that students get a comprehensive education, and that schools
remain welcoming places for LGBTQ students and their allies?
In the past, some parents would regularly take their children out of a
class because LGBTQ issues were being taught. They were able to do this
because educational policy said that parents could choose to take their
children out of classes with “sensitive content”, which included both
LGBTQ issues and sex ed. This policy was challenged by two LGBTQ rights
activists at the BC Human Rights Tribunal.5 They argued that BC schools
were being discriminatory by not including LGBTQ issues in the school
4 You probably already know this, but LGBTQ is an acronym that stands for “lesbian, gay,
bisexual, transgender, queer.” Some people prefer just to use the word “queer” as an
umbrella term for all of these, as well as other identities not included in the acronym like
two-spirit, asexual and genderqueer. The term queer also includes those who prefer not to
label themselves in a more specific way.
5 You can read more about this by looking up the legal cases Corren and Corren v BC
(Ministry of Education) (No 2) and Corren and Corren v BC (Ministry of Education) (No 3).
22
curriculum, and they wanted the government to clarify what was meant by
“sensitive content”.
Before the case could be heard by the Tribunal, the BC government settled
the case. As part of the settlement, the government decided that students
cannot opt out of classes like Social Studies, English, or Science for religious
reasons – even when controversial issues may arise in these classes. However, parents are able to take their children out of Health and Career classes
(where sex ed is taught) as long the subject material is taught at home or
through self-directed study.6 As you can see, this was a compromise – a
balancing of the competing interests of secularism, anti-discrimination and
religious freedom.
In the case Chamberlain v Surrey School District
No. 36, a school board refused to approve a
teacher’s request to use three books depicting
same-sex families in kindergarten and grade
one classes. The Board said the books were
inappropriate and that some parents could have
objections to them based on their religious beliefs.
A group of people, including the teacher, challenged the Board’s decision
in court. They argued that the Board’s decision was wrong both because
it had made the decision based on religious rather than secular principles
(violating the School Act) and also that it had violated the Charter.
The Supreme Court of Canada agreed. They said that while school boards
can address the religious concerns of parents, they must do so in a way
that respects other members of the community. The Supreme Court also
noted that the School Act reflects the fact that Canada is a diverse and
multicultural society where there should be tolerance and respect for
diversity. The Court then told the school board to reconsider its decision.
6 If you’re interested in seeing what the BC Ministry of Education’s official policy is, look up
a document online called “Alternative Delivery for Health and Career Education Curriculum
(Health Component)”.
23
How to handle competing religious and secular interests in diverse societies
is a question that has come up over and over in different countries around
the world for the last several hundred years – it’s an old civil liberties
favourite! In the next section, we’re going to switch gears pretty dramatically, and talk about some of the newest civil liberties issues that you may
encounter as a youth and a student: we’re going to talk technology.
Think about it
A student wants to bring her same-sex partner who is not a student
to the school dance. The school’s policy says that she has to ask the
school for permission to bring a guest who is not a student at the
school. Some parents find out that the student wants to bring her
same-sex partner. They tell the school that they are concerned that
seeing the same-sex couple will have a negative influence on their
children and goes against their religious beliefs. As a result, the school
does not allow the student to bring her partner.
1. Can the school deny the student’s request to bring her
same-sex partner?
2. Is the school’s decision consistent with the School Act?
3. What legal cases would you use to make your arguments?
24
Meanwhile, in Ontario…
The way that civil liberties work in schools is actually quite different in
different parts of Canada, since education is something that is mostly
controlled by each provincial government. It can be fascinating to
examine situations from different parts of the country.
You may have heard of gay-straight alliances (GSAs) – student-run
clubs that provide a safe place for all students to learn about and
support LGBTQ students and related issues. The Ontario Government
passed a law in 2012 that says that all public schools have to allow
students to form certain types of groups, including GSAs.
Here comes the different-in-Ontario part: in Ontario, Catholic schools
are publically funded because the Constitution protects certain types
of religious schools in certain provinces (to make a long story short,
this has to do with the fact that many of Canada’s early residents were
French Catholics). This is not the case in BC: although some private
schools receive funding from the BC government, Catholic schools do
not have the same constitutional status in this province.
In any case, some parents and trustees who are part of the (publiclyfunded) Catholic school system in Ontario were upset when the
government said they had to allow GSAs in their schools. They said
that the GSAs promote a view of same-sex relationships that undermines Catholic teachings.
1. In BC, Catholic schools aren’t publicly-funded like
they are in Ontario. Do you think this changes how
acceptable it is for them to teach negative perspectives on same-sex attraction? Why or why not?
continued on next page
25
2. Do you think that certain religions that play a
historically important role in Canada (like Catholicism) should get different treatment than other
religions that have become common in Canada
more recently?
3. How do you think the Ontario government should
balance freedom of religion, secularism and
non-discrimination in this case?
26
4 New Challenges: Technology and
Civil Liberties
Technology has become an integral part of our lives
pretty recently. We use our phones and computers
for practically everything we do: to communicate
with our friends, to do our homework, to take and
share photos and videos, to shop – the list goes on
and on. But as we store more and more information
on our electronic devices, and as these devices become our daily companions in classroom and school hallways, new civil liberties concerns arise, and
old civil liberties approaches need to be rethought so they continue to be
useful to us while we try to make sense of our modern world.
Taking freedom of expression online
Remember in Chapter 2 when we talked about how everyone has the
right to freedom of expression? Expression rights apply to your online
activities as well as your offline activities. You can generally say whatever
you want on the internet. Just like offline expression rights, however, your
internet expression rights are limited in some ways that the courts and
the government have decided are reasonable. For example, laws against
criminal harassment, defamation (telling lies about people that damage
their reputation) and child pornography limit
what you are allowed to express online.
Your school might also have policies that limit
the way you can use the internet, particularly
when using school computers. It’s possible you
signed a copy of the policy at the beginning of the school year without
really reading it – if so, talk to your teachers and see if you can get a copy
to take a closer look. It is important to know what policies your school has
about internet usage so you don’t break any rules without even knowing
you were doing it.
27
If I write under a pseudonym (a fake name), how will they know it was me?
When someone reports a possible cybercrime (this is just a way of saying
a crime that happens on the internet), the police or school can first make a
request to the website – like Facebook or Twitter – to find out the Internet
Protocol (IP) address of the computer that was involved. Every computer
and smartphone has a unique IP address that identifies your device to
any website that you visit. Once the authorities have the IP address, they
can ask an Internet Service Provider (ISP) – the company that provides
you or your school with internet services – for the subscriber information
associated with that IP address (this is the personal information that you,
your family or your school gave to the ISP when you signed up for internet
service). Under BC’s Personal Information Protection Act, the ISP is allowed
to disclose your subscriber information to either the school (if it has an
order from a judge) or to the police, to help them conduct an investigation.
Meanwhile, in Ontario…
Generally in BC school officials are only authorized to punish students
for activities that occur on school property, or at school-organized
activities off school property. If we take another quick trip to Ontario,
though, we’ll see that it’s not like this everywhere in Canada. Schools
there are allowed to punish students for conduct that affects the school
climate, even if the misconduct did not take place on school grounds
or during a school-related activity. In a 2008 case called RT v Durham
Catholic District School Board, a grade 8 student was challenging her
school’s decision to expel her after she impersonated a classmate on
Facebook and made constant mean and threatening remarks towards
her. The Review Board found that the school board had been justified
in expelling the student because her online actions had disrupted the
school environment. continued on next page
28
1. How would you define “conduct that affects the school
climate”?
2. Do you think schools should have any power to discipline
you for something that happened outside of school? In
what circumstances might this be appropriate?
Sexting: Harmless fun or serious crime?
You may have heard the term “sexting” before – it’s a combination of the
words “sex” and “texting”. As you can probably guess, it means texting
sexually explicit photos to other people. Sexting presents a number of
interesting and complicated problems for those of us concerned with rights
and freedoms, problems that we couldn’t even have dreamed of a decade
ago.
First, we need to make one thing crystal clear: when we’re talking about
sexting in this section, we are talking about someone taking a sexually
explicit photo of themselves and sending it to a friend or sexual partner
because they want to, not because someone is making them or pressuring
them to do it. We’re also talking about a situation where the person who
receives the photo keeps it private. As soon as the recipient of the photo
passes it on to someone else without the permission of the person in the
photo, it becomes much more likely that the police may get involved. You
can face very serious charges for distributing an explicit photo of someone
without their consent.
With that in mind, read on!
If you and your partner are both over 18, sexting (of the type described
above, where the images remain private and everyone involved actually
wants to be involved) is nothing to worry about. But you may have
guessed where this is going: if you or your partner is under 18, texting
nude or sexually explicit photos to each other falls into a grey area. It could
29
technically be considered the distribution of child pornography, since you’re
creating sexually explicit material of someone under 18 (yourself) and
distributing it to someone else. And that’s pretty serious.
What exactly is child pornography?
According to our Criminal Code, child pornography includes any images of
a person under the age of 18 shown taking part in explicit sexual activity,
or showing “a sexual organ” of a person under the age of 18.
We all know that making, distributing, possessing or accessing child
pornography is illegal, and it probably wouldn’t be too hard to think of
some good reasons why this is. The creation and distribution of pornography is considered by the courts to be an act of expression, protected under
the Charter, but generally the courts have found that protecting children
from the abuse and exploitation associated with child pornography justifies
limiting this expression (remember section 1 of the Charter?).
In a 2001 case called R v Sharpe, however, the Supreme Court recognized
that there are some exceptions – some very specific circumstances where
the creation of material technically defined as child pornography doesn’t
actually pose any risk of serious harm to children. One of these exceptions
was the case of photographs or videos taken by a youth him- or herself for
private use. So this means you cannot go to jail for taking a photograph
of yourself naked, even if you are under 18, as long as you intend it for
private use. Phew.
But it gets trickier quickly as soon as you think about sharing that photo
with someone, even if it’s the person you’re dating. In 2001 when the
Sharpe case took place, no one had cell phones fancy enough for sexting,
so the information we can get from Sharpe doesn’t really tell us everything
we would like to know about how the practice might be viewed by
the courts.
30
What do I need to know about sexting?
Because sexting is a relatively new practice, the Supreme Court of Canada
has yet to issue a ruling that deals with whether or not you could be
charged with distributing child pornography if you’re sexting with a friend
or your partner. But in general youth haven’t been getting charged and
prosecuted for it, as long as the images remain in private. If you sent a
nude picture of yourself to the entire volleyball team, though, you might
find yourself in different legal territory.
In April 2013, the Nova Scotia Public Prosecution Service (the public
body responsible for prosecuting criminal cases in Nova Scotia) published
an official document outlining the way they choose to handle sexting.7
Currently, British Columbia has no similar document, and even if they did
it would not be legally binding (meaning police and prosecutors would
not be required to follow it) – this Nova Scotia document contains general
guidelines only. Still, it’s interesting to see what the Nova Scotia guidelines
say, because they show us how one province is trying to grapple with new
challenges that sexting poses for criminal law.
According to the document, “possession or transmission to a friend of
one or two images of nudity might not attract prosecution.” It also notes,
however, that if a youth is sending a large number of sexually explicit
pictures of themselves to a lot of different people, it might be a more
serious matter.
So what should you know about sexting? In short, you should know that
nothing about sexting is clear at the moment, from a legal perspective.
You’ll have to use careful judgement when deciding whether or not sexting
is for you.
7 If you’re interested, you can read the whole thing online here: http://www.gov.ns.ca/pps/
publications/ca_manual/ProsecutionPolicies/Sexting.pdf
31
Think about it
Hamid and Emma are dating. Emma sends Hamid a semi-nude photo
of herself, trusting him to keep it to himself. Hamid sends the photo to
all his friends at school. When Emma comes to school the next day, the
other students are all whispering about her. Later that day Emma sees
that someone made a fake online profile of her, calling her names such
as “slut” and “whore”.
1. Do you think the school should get involved? Or would this
violate Hamid’s right to free expression?
2. If you think the school should get involved, who do you
think they should punish, and why?
3. If you think there should be punishments, what kind of
punishments do you think would be fair?
See “For Further Discussion” section on p. 54 for more information.
Think about it
Safiah has discovered that someone made a fake Facebook profile
using her name and picture. The profile says really mean things about
her. She tells the school, who tell the police. The police find out that
it was written by Toshio, another grade 11 student at Safiah’s school.
Toshio claims that the police violated his right to privacy and that he
can write anything he wants online because it’s protected by his right
to freedom of expression.
1. If you were the principal, what would you do?
2. If you were Safiah’s lawyer, what would you argue?
3. If you were Toshio’s lawyer, what would you argue?
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They’re watching you: Video surveillance
Surveillance cameras are everywhere these days,
and it’s pretty likely that you have at least a few
around your school. This might creep you out,
but is it illegal?
No, actually – it’s legal for schools to install
cameras. Section 74.01 of the School Act allows
school boards to install surveillance cameras in schools for the purpose
of protecting people in the school, people’s belongings in the school, or
school property. So if your school has installed video cameras it is not doing
anything illegal, even if the students at the school object.
The BCCLA believes that schools should have to prove there is a need for
security cameras before installing them. We think that surveillance cameras
are a pretty serious violation of your privacy, and that they should only be
used to deal with problems that actually exist, rather than just installed on
the off chance that a problem might develop in the future.
Just because your school can install video cameras, however, doesn’t mean
that you have no rights in relation to the cameras. Think about this when
you read the “Think about it” box about Channelle.
Think about it
Channelle is rushing to class. She is a few minutes late, but slips
in without the teacher noticing. After class she gets called to the
principal’s office because this is the third time she has been late for
class this week. Channelle protests, and asks for proof of her tardiness.
The principal pulls up surveillance videos of Channelle in the school
hallways with time stamps showing that she was late.
continued on next page
33
1. Do you think Channelle’s rights have been violated? Why or
why not?
2. What do you think Channelle could say in her defense?
See “For Further Discussion” section on p. 55 for more information.
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5 All Kinds of Searches
In this chapter, we’re going to talk about all kinds of searches. Following
on the previous chapter’s theme of technology, we’ll start with a kind of
search that has only become of concern very recently: cell phone searches.
But first, we need to make a very important point: who is conducting the
search matters a lot.
READ THIS: Searches and who conducts them
You may feel violated when someone in a position of authority is
rifling through your stuff. You might get just as upset if a teacher looks
through your backpack as you would be if a police officer did the
same thing, but legally these are two very different kinds of searches.
It might not seem like it at the time, but it matters a whole lot who is
searching you.
Because of the in loco parentis rule (see p. 13), schools are given quite
a lot of flexibility about enforcing their own rules and making sure
students are safe. This means that they have quite a bit of power to
search you if they suspect you might be breaking the rules or threatening school safety.
The police, on the other hand, can only search you in very specific
circumstances. We’ll talk about this more in this chapter, but for now,
it’s enough to know that they have to have much better reasons before
they can search you than your teachers do.
It gets tricky when teachers and the police seem to be working
together. There are some court decisions that are helpful for figuring
out what kinds of teacher-police team searches are ok and which ones
aren’t. The courts have said specifically that the police cannot use your
teachers to get around the strict rules about when they can search you
continued next page
35
by asking a teacher to search you for them. In other words, the school
cannot act as “an agent of the police.” The test to see if the school
is acting as an agent of the police is whether the search would have
happened even if the police were not involved. If the teacher was only
searching you because the police told them to, they are acting as an
agent of the police and the search may have been illegal.
Cell phone searches
As we mentioned way back in Chapter 1, the Charter protects individuals
from unreasonable search and seizure. Canadian courts have found that
a person of authority going through someone’s cell phone is considered
a search. But when is this search considered unreasonable? Do we have
a reasonable expectation of privacy for the information found on our
phones?
In many cases, you do have a reasonable expectation of
privacy while at school. However, in loco parentis gives
schools the right to do all kinds of things your parent
might do, which could include confiscating your cell phone
temporarily if you are breaking a school rule by using it or
having it with you on school grounds. 8
In R v AM, the court decided that school searches need to be based on
evidence of a possible violation. This means that a teacher shouldn’t search
your phone just because they feel like it – they should have a good reason
for doing so, like a reliable report that you broke a school rule.
The BCCLA thinks that students have legitimate claims to privacy while in
school, and that you have the right to be clear about the circumstances
in which your phone might get searched by a teacher. School authorities
should develop clear policies on when teachers or administers can check
out the contents of your phone. Ask your school administrator if your
8 You can read more about search and seizure by teachers and principals in a case called R v
M (MR).
36
school has such a policy! If not, and if it’s something you think is important,
see if you can work with your school administration to develop one.
What if the police received a reliable report that you broke a school rule?
Could they search your phone? Maybe not - read on.
Can police officers search my phone?
The police can definitely search your phone if they
get a warrant – a document issued by a court
ordering police to do something. In order to get
a warrant, the police usually need to have some
pretty good reasons to believe you were involved
in committing a crime. They couldn’t get a warrant
to search your phone just because you were late for
biology or because you didn’t show up for detention.
So, can the police search your phone even if they don’t have the information they would need to get a warrant? The answer is that as of the time
that this handbook was written (near the end of 2013), no one really
knows! This sounds crazy, but it’s true. Because technology advances so
quickly, and laws can be slow to change, the case law in this area has not
caught up to the changing technology (if you don’t remember what case
law is, head back to Chapter 1 to review).
Think about the cell phones that you or your parents had not too long
ago, that could store phone numbers and maybe some very short text
messages. In those days, if someone looked through your phone it would
be a privacy violation, but it would be a limited one. Now that phones
often contain massive amounts of extremely personal information, such
as banking information, thousands of emails with all kinds of personal
content, photos and videos and so on, the privacy stakes are much higher.
Many of the cases about cell phone searches that have taken place in
Canada have not made it all the way to the Supreme Court of Canada,
37
which means that the rulings only apply in the province where the decision
was made – only the Supreme Court of Canada’s rulings apply all across
the country. If the Supreme Court of Canada rules on the issue of cell
phone searches in the future, they may or may not agree with the judges
who wrote the lower court decisions in various provinces. Despite this
uncertainty, there are a few things about cell phone searches that seem – at
this point – to be the case:
• If you have been arrested, the police are allowed to search you
(without a warrant) if they believe the search is necessary to
protect themselves from harm or to find evidence that might
otherwise disappear before the trial. The courts have ruled that
this search can include your cell phone if they have a reasonable
suspicion that it might contain important evidence.9
• In a 2009 case called R v Polius, an Ontario court found that a
police search of an individual’s phone must be only “cursory”
without a warrant, and that a warrant should be required to
conduct a more thorough search of an individual’s phone.
“Cursory” means a search that is done quickly and not very
thoroughly – a police officer might skim through whatever
email you had open on the screen when they arrested you,
for example. But a cursory search would not include looking
carefully through every email in your inbox.
• In a 2013 case called R v Fearon, the Ontario Court of Appeal
found that individuals have less of an expectation of privacy
with phones that are not password-protected. So if you are
concerned about the privacy of your phone, it’s a good idea to
put a password on it. This case shows us that passwords may
carry some legal weight.
9 This was established in a 2007 case called R v Giles.
38
What about information held by my cell phone provider?
You may not know this, but some cell phone providers keep copies of the
text messages you send for a while after you send them. If the police get
what’s called a “general warrant”, they can access old text messages that
have been stored by your phone company. To get a general warrant, a
judge has to be convinced that there are reasonable grounds to believe
that a criminal offence has been committed or will be committed, and that
information concerning the crime will be obtained by looking at the text
messages. As you can see, this is a pretty high standard.
To intercept your text messages and phone calls as they happen, police
need to get a wiretap authorization from a judge. For a wiretap authorization police not only have to show that there are reasonable grounds to
believe a crime has been or will be committed, they also have to show that
they could not get the required information in a less invasive way.10
In the next section, we’re going to expand our discussion of searches and
dealing with police to include more than just cell phones.
Searching your person
When we use the phrase “searching your person”,
we mean things like being patted down, being
asked to remove the contents of your pocket, or
being asked to take off your shoes and socks to see
if you are hiding anything in them.
Because of in loco parentis, teaches or school administrators can search
your person – just like your parents, they can ask to see what you have
in your pockets. 11 However, unlike your parents, they still must have
reasonable grounds for doing so. Reasonable grounds might include
10This is outlined in the Criminal Code of Canada.
11You can read more about search and seizure by teachers and principals in a case called R v
M (MR). This is a very important case for this area of the law, and much of the information
in this section comes from it.
39
something like a teacher saw someone passing you drugs, or a couple of
reliable students informed the principal that you were carrying a knife.
Reasonable grounds would not include things like the fact that you have
tattoos or piercings, are late for class, are walking down the hall with your
headphones in, or are a student the teacher doesn’t like.
The police, on the other hand, can only search you legally in one of three
circumstances:
1. During a lawful arrest.12
2. If they have a valid warrant to search you.
3. If you tell them it’s ok to search you (“consensual searches”).
In general, consensual police searches are probably the most common.
Why? Because people tend to get nervous around the police and agree
to do what the police ask them to do even if they don’t have to. But it’s
important to know that legally you may say no.
Even if you may legally say no to the police when they ask to search you,
it’s important for you to exercise your best judgement when deciding
whether or not to do this. It’s possible that agreeing to the search will
end your interaction with a police officer more quickly and easily. It’s also
possible that insisting on your right not to be searched will make the police
officer frustrated with you. There’s no way to know in advance how an
individual police officer will respond to you asserting your rights.
The BCCLA can’t make any specific recommendations about when it makes
sense to assert your rights. But if you know what your rights are, you can
make the most informed decisions possible about how to act. It all depends
on the specific situation that you’re in and how safe you feel.
12What’s a lawful arrest? Check out the BCCLA’s publication The Arrest Handbook: A Guide
to Your Rights for more information: http://bccla.org/our_work/the-arrest-handbook-aguide-to-your-rights/
40
Grey areas: Teacher search or police search?
If a school official finds drugs or anything illegal on you, they can take
it and turn it over to the police. In a case called R v M (MR), a school
principal searched a student in front of a police officer. The principal
found drugs on the student, handed them over to the police, and the
student was charged with narcotics possession. The Supreme Court of
Canada decided that this search was reasonable and had been conducted appropriately. They decided that even though the police officer
was beside the principal, it was only the principal who was conducting
the search.
Searching your locker and backpack
The rules for searching your stuff are almost the same as the rules for
searching your person. The police cannot search you except for the three
reasons listed on page 40. School staff must have reasonable grounds
(good reasons) to search you – they can’t do it randomly or arbitrarily.
School administrators and teachers generally see lockers
as school property, however, and often reserve the right
to search them when they want to. Usually they even
reserve the right to remove the lock.
Some school boards have created policies regarding
student locker searches. The BCCLA thinks this is a
good idea – we think it’s important that students have a clear idea of the
circumstances in which the school may look in their locker, so that they can
make informed decisions about how to use their lockers. We also think that
it’s good policy for a school to ensure that the student is present while their
locker is being searched.
It’s a good idea to find out whether your school has a locker search policy,
and if so what it is. If you think the policy doesn’t take your right to privacy
seriously enough, start a petition to change it!
41
Use of sniffer dogs
In a 2008 case called R v AM, the Supreme Court of Canada explored the
issue of sniffer dogs in schools. In this case, the police had a long-standing
invitation from the principal of a high school to bring sniffer dogs into the
school to search for drugs.
The police had no specific reason to suspect that there
were drugs at the school – they had no reasonable
grounds to conduct the search, and probably would
not have been able to obtain a warrant for the search if
they had tried to do so.
On one particular day, the sniffer dog located a backpack that it identified to the police as possibly containing drugs. The officer searched the bag and found marijuana and magic
mushrooms. The student who owned the backpack (referred to as “AM” in
the court case to protect their anonymity) was charged with possession of
marijuana for the purpose of trafficking.
In this case, the government tried to make the argument that the dog was
not actually searching the student’s bag. They said that the dog was merely
sniffing “public air space”! The Supreme Court, however, didn’t buy this
argument. They said that the use of drug sniffing dogs does in fact count
as a search, and that when the dog sniffed the air it was as if it was “seeing
through” the fabric of the bags. Because the Court decided this search was
illegal, they threw out the evidence and AM was acquitted.
What does this mean for you? It means that drug-sniffing dogs cannot be
brought into your school to search backpacks and lockers unless the police
or your teachers have a reasonable suspicion that a student has drugs with
them at school.
42
Think about it
Think back to Chapter 1 when we talked about section 1 of the
Charter: that your rights are subject to “reasonable limits” as long
as they can be “demonstrably justified.” Limiting your privacy rights
in school is something that the government and the courts believe is
justified in certain circumstances.
1. How might they justify this limitation on your privacy rights
in school?
2. Do you think these are good arguments? What arguments
might you make to convince the government that limiting
your privacy rights in school is not actually justified?
43
6 School Discipline and Criminal
Justice
One of the most important civil liberties that we
have in Canada is the right to be dealt with fairly
when we break the law. As you know, if you
break the law there’s a chance you could end up
in jail – the fact that the stakes are so high makes
it extra important that you are dealt with fairly.
School discipline probably isn’t going to land you in jail, which means
the standards for fairness are not quite as high. Despite this, the BCCLA
believes that the same values should be respected by your teachers and
school administrators when they’re disciplining you in school. We think that
any disciplinary process should be fair.
Characteristics of a fair disciplinary proceeding include things like:
•All the people involved have their views, opinions and beliefs
about the situation taken into account.
•The final decision about what kind of discipline is appropriate
is made by someone unbiased and not directly involved in the
situation.
•The way the decision is made should be transparent – the
person who makes the decision should be able to provide
reasons about why they decided what they did.
Sometimes we use the idea of “procedural fairness” to describe what
an ideal disciplinary process looks like. Having procedural fairness means
that everyone feels that the system used by the decision maker to decide
whether or not a punishment is appropriate (and how serious the punishment should be) is fair.
44
Another term that often comes up when we’re talking about disciplinary
proceedings is your right to “due process”. This term tends to refer specifically to situations where you have actually been accused of a crime. Your
right to due process means that the government and its agents (like police,
prosecutors and judges) need to treat you fairly and respect your rights
during the course of an investigation, arrest, and trial. One of the most
famous due process rights can be found in section 11(d) of the Charter:
11. Any person charged with an offence has the right
d) To be presumed innocent until proven guilty according
to law in a fair and public hearing by an independent and
impartial tribunal.
School discipline and your rights
Detentions: An in-school deprivation of liberty
Section 9 of the Charter gives everyone the right
not to be detained by a government agent without
good reason. Being detained is a fancy way of
saying being kept somewhere where you don’t
want to be. Your school probably uses detentions as
Think about it
punishment – notice that
‘detain’ and ‘detention’
What do you
are words that sound very similar. Detention
think are the
is a place where your teachers detain you. In
characteristics of a
general, if you are sent to detention at school it
fair school rule or
shouldn’t be arbitrary – it should be clear to you
policy? What are
what you have done to end up there.
some ways your
school could make
its rules and policies
more fair?
While you may feel like being sent to detention
is a little bit like being sent to jail, it is unlikely
you could take this matter to court. Technically,
detention does deprive you of your liberty, but
the consequences for being sent to detention are
45
Think about it
Your principal implements a new policy: no one is allowed to wear
tank tops at school. She is very serious about this and states that
anyone who violates this new policy will be suspended for one day.
The policy is announced verbally during the morning announcements.
You were off sick that day and were not aware of this new policy.
When you’re feeling better, you put on your favourite tank top and
head to school. As soon as you get there your principal tells you that
you have been suspended for one day.
1. Do you think this policy violates your free expression
rights? Think back to Chapter 2. If so, how do you think
your principal would justify violating your rights in this
way?
2. Do you think the way this policy was put into place was
fair?
3. Do you feel the punishment is equal to the ‘crime’?
4. Should you be suspended for a day? Why or why not?
5. If you believe the school’s decision wasn’t fair, what actions
can you take?
6. How could the school make new policies in a more fair way
in the future?
not major enough to be of much interest the justice system. Besides, acting
in loco parentis means that teachers have a bit more power to deprive you
of your freedom than another government agent would.
Even though section 9 of the Charter probably won’t help you if you feel
like you’ve been sent to detention unfairly, it will help you out a great deal
in your dealings with the police, which we’ll talk about later in this chapter.
46
Suspensions and what to do about them
Suspensions are a more serious form of school discipline than detentions.
The school board’s power to suspend students is found in section 85(2)
of the School Act, which also allows school boards to set their own rules
regarding suspensions. This means that if you want the most specific
information about why you might be suspended and what you can do
about it, you’ll have to talk to your local school board.
If you are suspended, you and your parent(s) or guardians should be
notified right away of the reasons why you have been suspended and the
length of the suspension. You should also be notified about how you can
appeal the suspension.
Having a way to appeal a decision is a really important part of procedural
fairness. If you have been suspended and want to appeal the decision,
you should act quickly. Notify the school board of your desire to appeal as
soon as possible, and ask them for information on how their specific appeal
process works.
How quickly do you have to act? The School Act says that if you want to
appeal a school decision, you must do it within a “reasonable” time limit.
However, different school boards define “reasonable” in different ways.
You may have as little as 30 days or as much as one year to file an appeal,
but the sooner you find out what your school board’s policy is the better.
If you go through the appeal process and are still unsatisfied, you can file a
complaint to the Office of the BC Ombudsperson. It is the Ombudsperson’s
job to ensure that public bodies – including schools and school boards –
treat you fairly. You can learn more about the Ombudsperson and how to
file a complaint with their office on their website.
http://www.ombudsman.bc.ca/
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The criminal law, the police and you
Even though suspensions are a more serious punishment than detentions,
they are still significantly less serious than the kinds of punishments you
can face if you get tangled up with the police or criminal charges. We’ve
already talked a little bit about your rights when dealing with the police
while we were talking about searches; now we’re going to go a little
deeper into this area. The rights we talk about in this section apply to
your dealings with the police both while you’re at school and when you’re
outside of school.
Key laws
There are two main laws that come into play
when talking about youth and crime. The most
important is the federal criminal law called the
Criminal Code. It covers common crimes like
shoplifting, breaking and entering, car theft and
assault, and more serious crimes, like murder. Separate federal laws deal
with things such as possession and selling (or trafficking) of illegal drugs.
The Youth Criminal Justice Act is the law that controls how criminal law
is applied to young people accused of breaking federal law (such as the
Criminal Code). The Act only applies to young people ages 12 to 17, while
the Criminal Code applies to everyone over the age of 17.
There are also provincial laws that cover many other offences, such
as drinking under age, trespassing and breaking traffic laws. In British
Columbia these include laws such as the Offence Act, Trespass Act, and the
Motor Vehicle Act. We don’t have time to talk about each one of these,
but you can find complete copies of all of them online:
http://www.bclaws.ca/
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Interacting with the police
There are all kinds of rules relating to the way that police and members of
the public interact, and we don’t have time to talk about them all here. If
you’re interested in learning more, you should check out another BCCLA
handbook called The Arrest Handbook: A Guide to Your Rights. You can
access it online.
http://bccla.org/our_work/the-arrest-handbook-a-guide-to-your-
rights/
We’ll reproduce some key points from The Arrest Handbook below.
Dealing with the police can be intimidating and sometimes even scary, so
it’s good to be knowledgeable about your rights in these encounters.
Talking to the police while you’re on foot
There are three reasons why a police officer would stop someone walking
down the street. You have different rights in each situation.
1. The Police are Just Making Conversation: If the police seem
to be just making conversation with you and you don’t like it,
you can politely ask them, “Am I free to go?” If the answer is
yes, you can leave. If the answer is no, you are being detained
(remember this word from when we talked about detentions?).
2. The Police are Detaining You: If the police tell you that you
are not free to go, this means that you are being detained.
They can only detain you if there are reasonable grounds (good
reasons) to suspect that you are connected to a crime. You have
the right to know why you are being detained. If you are being
detained you have the right to remain silent (you don’t even
have to tell them your name), but it may make the interaction
end more quickly or go more smoothly if you give the police
your name and address. If you are being detained for a good
49
reason, the police can conduct a pat-down search to look for
weapons, and they might inspect the contents of your bags.
3. The Police are Arresting You: You will know you are under
arrest because a police officer has said you are under arrest, or
somehow made it clear that you are not free to go by physically
holding you. If you are under arrest and the police ask you,
you must tell them your name and address. You do not need
to tell them anything else. You have the right to ask why you
are being arrested. The police must answer unless the reason is
obvious.
If you want to find out about your rights if the police arrest you, check out
The Arrest Handbook.
Talking to the police while you’re driving
As soon as you get behind the wheel of a car,
there are many more reasons why a police officer
could stop you and require you to identify yourself
by showing your driver’s license. You have different rights when you’re driving than when you are
walking. The police may stop you to check whether you have been
drinking or using drugs. If they have reasonable grounds to suspect that
you may have been driving impaired, they may ask you to take a
breathalyzer test.
In what circumstances can the police ask to search your car? Check out The
Arrest Handbook to find out.
If you are under 18
People younger than 18 sometimes have more rights and protection
under the law than adults. If you are under 18, the police have a special
responsibility to be very clear about your rights and be sure you understand
what’s happening. Ask questions if you do not understand. Just like an
50
adult, you also have the right to remain silent (this means the right not
to say anything). Young people also have special rights to a lawyer – you
won’t have to pay for it. Tell the police or the judge that you want to speak
to a lawyer as soon as possible if you have been arrested.
Your parents will be contacted as soon as the police can call them. If they
are not around, you can give the police the name of a close relative or
trusted adult friend who can come to the jail instead. You have the right to
have another adult person with you when you meet with your lawyer.
If you feel you have been mistreated by the police
If you feel you have been mistreated by the police and you want to
find out what you can do about it, call the BCCLA! We can help you
file a formal complaint if the police have given you something to
complain about.
The more information you have about what happened to you, the
better the complaint you’ll be able to write will be. You should record
as much of the following information as you can as soon as possible
after the incident:
• Date, time and location of the incident,
• Exactly what happened, in the order that it happened in,
• Name(s) or badge number(s) of the officer(s) involved (if
you know them), or a description of the officer(s),
• Names, addresses and telephone numbers of any witnesses,
• If you received medical treatment as a result of the incident,
the name of the doctor who treated you,
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continued on next page
• Copies of any photographs of injuries or damage sustained
in the incident,
• Any video footage of the incident.
The more of this information you have, the more likely your complaint
will be taken seriously.
52
For Further Discussion
In this section, we will return to many of the discussion questions and
case studies that were posed earlier in the handbook. Try to think about
the questions on your own at first, but you may find it helpful to read this
section if you’re having trouble, or want to see whether you missed any
key points. There are no right or wrong answers to these questions. But
the information below should give you a good idea of key issues you could
take into account while deciding how to answer them.
Think About It: Maya, Ye and the Pro-Life T-Shirt (page 17)
1. How is this situation similar to the American student with the
“International Terrorist” t-shirt? How is it different?
•The incidents are similar in that they both deal with free expression in school, and both involve a slogan printed on a t-shirt.
•In the “International Terrorist” t-shirt example, the person who
was being negatively portrayed on the t-shirt was George W.
Bush, a public figure. In this example, the person being hurt by
the t-shirt is Ye, an actual student at the school. You could argue
that the school has a greater responsibility for Ye’s well-being
than for George W. Bush’s.
2. Was there a less extreme way the school could have made sure Ye didn’t feel harassed and discriminated against other than forbidding Maya from wearing her t-shirt at school?
•The school could have worked with Ye to see whether there was
anything she or other pro-choice students at the school were
interested in doing to teach the students about their position on
the issue, in order to be sure that Maya’s voice was not the only
one that was heard.
53
•This solution has the advantage of not infringing on anyone’s
right to free speech. However, it may or may not address Ye’s
concerns.
3. Do you think Maya should be allowed to wear her shirt? Why
or why not?
•How you answer this question depends on what you think are
good reasons to limit someone’s freedom of expression. A good
answer will involve a thorough weighing of the pros and cons.
•One thing to consider is whether you feel that the kinds of free
speech that should be allowed in schools are different (or not)
than free speech in other contexts, like in a public park.
Think about it: Hamid and Emma and the Semi-Nude Photo
(page 32)
1. Do you think the school should get involved? Or would this violate Hamid’s right to free expression?
•The school may want to get involved since Hamid’s online
actions are affecting the school environment.
•How you answer this question depends on what you think are
good reasons to limit someone’s freedom of expression. A good
answer will involve a thorough weighing of the pros and cons.
2. Who do you think the school could punish, and why?
•The school may want to punish Hamid for sending the text,
which could be contravening the school’s code of conduct. The
school might also punish any other students that are calling
Emma names as a result of seeing the photo.
54
3. What kind of punishments do you think would be fair?
•There have been many discussions across Canada about the
fairest ways for schools to deal with bullying. There is a lot of
disagreement on this issue.
•Some people think that bullying is best dealt with at the school
level. The school might want to give the students, including
Hamid, detentions or suspensions for sending the photograph
and harassing Emma.
•Other people feel that the police should be involved too. In this
case, it’s possible the school would call the police to investigate
whether the sending of the photo contravenes any criminal
laws, such as provisions regarding harassment or the distribution
of child pornography.
•What do you think is the fairest approach? Why?
Think about it: Channelle and the Video Cameras (page 33)
2. What do you think Channelle could say in her defence?
•She would have to show that she has a reasonable expectation
of privacy in her image and whereabouts while at school.
•She could argue that the school is only supposed to use the
video surveillance to protect student safety, and that using the
video to punish her for being late goes beyond the sort of thing
that the school should be using surveillance for.
55
Links to Legal Decisions
Chamberlain v Surrey School District No. 36
http://www.canlii.org/en/ca/scc/doc/2002/2002scc86/2002scc86.
html?searchUrlHash=AAAAAQAsQ2hhbWJlcmxhaW4gdi4gU3VycmV5IFN
jaG9vbCBEaXN0cmljdCBOby4gMzYAAAAAAQ
Corren and Corren v BC (Ministry of Education) (No. 2)
http://www.bchrt.gov.bc.ca/decisions/2005/pdf/corren_and_corren_v_bc_
(ministry_of_education)_(no_2)_2005_bchrt_497.pdf
Corren and Corren v BC (Ministry of Education) (No. 3)
http://www.bchrt.gov.bc.ca/decisions/2006/pdf/feb/55_corren_and_
corren_v_bc_(ministry_of_education)_(no_3)_2006_bchrt_55.pdf
Multani v Commission scolaire Marguerite-Bourgeoys
http://www.canlii.org/en/ca/scc/doc/2006/2006scc6/2006scc6.
html?searchUrlHash=AAAAAQAzTXVsdGFuaSB2LiBDb21taXNzaW9uIHNj
b2xhaXJlIE1hcmd1ZXJpdGUtQm91cmdlb3lzAAAAAAE
R v AM
http://www.canlii.org/en/ca/scc/doc/2008/2008scc19/2008scc19.html
R v Fearon
http://www.canlii.org/en/on/onca/doc/2013/2013onca106/2013on
ca106.html?searchUrlHash=AAAAAQAMUi4gdi4gRmVhcm9uAAAAAAE
R v Giles
http://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc1147/2007bc
sc1147.html?searchUrlHash=AAAAAQALUi4gdi4gR2lsZXMAAAAAAQ
56
R v M (MR)
http://www.canlii.org/en/ca/scc/doc/1998/1998canlii770/1998canlii770.
html?searchUrlHash=AAAAAQANUi4gdi4gTS4gKE1SKQAAAAAB
R v Polius
http://www.canlii.org/en/on/onsc/doc/2009/2009canlii37923/2009canl
ii37923.html?searchUrlHash=AAAAAQAMUi4gdi4gUG9saXVzAAAAAAE
R v Sharpe
http://www.canlii.org/en/ca/scc/doc/2001/2001scc2/2001scc2.html?sear
chUrlHash=AAAAAQAMUi4gdi4gU2hhcnBlAAAAAAE
RT v Durham Catholic District School Board
http://www.canlii.org/en/on/oncfsrb/doc/2008/2008cfsrb94/2008cfs
rb94.html?searchUrlHash=AAAAAQAtUi5ULiB2LiBEdXJoYW0gQ2F0aG9sa
WMgRGlzdHJpY3QgU2Nob29sIEJvYXJkAAAAAAE
Russow v British Columbia
http://www.canlii.org/en/bc/bcsc/doc/1989/1989canlii2688/1989canl
ii2688.html?searchUrlHash=AAAAAQAaUnVzc293IHYuIEJyaXRpc2ggQ29
sdW1iaWEAAAAAAQ
SL v Commission scolaire des Chênes
http://www.canlii.org/en/ca/scc/doc/2012/2012scc7/2012scc7.html?searchUrlHash=AAAAAQAlU0wgdi4gQ29tbWlzc2lvbiBzY29sYWlyZSBkZX
MgQ2jDqm5lcwAAAAAB
57
Have you ever wondered…
•Whether you could face criminal charges for sexting?
•Whether your teacher or the police can search the
contents of your cell phone?
•Whether you can be disciplined at school for something
you said outside of school?
Does your school…
•Invite the police to use sniffer dogs to look for drugs?
•Have a dress code policy?
•Use surveillance cameras to watch you while you’re on
school property?
Do you…
•Think it’s ok for religious parents to pull their children
out of classes that discuss topics like LGBTQ issues and
sex ed?
•Know how we decide when it’s ok for the government
to limit your rights and freedoms?
•Know what your rights are when dealing with your
teachers, principals or the police?
For the answers to these questions and many more,
take a look inside!